CA Trust, Estate & Probate Litigation

CA Trust, Estate & Probate Litigation

Gifting Styles of the Rich and Famous: How California Financial Elder Abuse claims arise in mysterious ways!

Posted in Abuse & Fraud, Elder Abuse

Here's your gift ... Now give it back!!

Can I give you a gift and then sue to get it back? That’s the scenario Chapman University (located in Orange, California) faced earlier this year when a leading philanthropist (and all-around rich guy) Mr. James Emmi pledged $12 million to Chapman University…and then changed his mind about it. Or did he? According to a report in the Orange County Register, Mr. Emmi actually never intended to make the gift in the first place. Instead, the lawsuit alleges, Chapman University President James Doti put undue pressure on Mr. Emmi to make the gift. Mr. Doti is alleged to have wined and dine the elder Mr. Emmi and pressured him to make the $12 million commitment to the University, which is alleged to be 60% of the Emmi’s total estate value.

Less than a month after its filing, the lawsuit was settled under a confidential settlement agreement that appeared to allow Chapman University to keep $3 million that was received by the University, and most likely cancelling the remaining $9 million obligation.

When the lawsuit was filed by Mr. Emmi against Chapman University, they used a cause of action well known to us: Financial Elder Abuse. Yes, the application of that statute can be far ranging. The allegations were grounded in the idea that Mr. Emmi was susceptible to inducement and confusion (i.e., undue influence) due to his advanced age. And that Mr. Doti “preyed” on Mr. Emmis weaknesses. Under the Financial Elder Abuse statute, obtaining the property of an elder by the exercise of undue influence is one of the ways in which elder abuse can be proved in court. With the right set of facts and evidence, the undue influence prong can be triggered in a wide array of circumstances, including in the context of a charitable gift.

That does not mean that everything an elder does is the product of undue influence. But it does mean that elder abuse can occur where you least expect it. Most people think of elder abuse as a scam artist stealing an elder’s life savings, but it does not need to be that extreme. Mr. Emmi’s allegations show that even those with substantial means can be the victims of an alleged elder abuse claim.

How To Handle Bad Trustees: Wasting Trust Assets

Posted in Trustee Breach of Trust, Trustees & Beneficiaries

Bad Trustees

When a Trustee refuses or fails to properly invest Trust assets, those assets can waste away.  Wasting Trust assets in one of the basis on which you can seek removal of your California Trustee.  In this video, partner Keith Davidson discusses Trustee removal based on wasting Trust assets.

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Where Do You…Go To Sue? Do You Know Where to Sue Your California Trustee?

Posted in Litigation, Trustee Breach of Trust, Trustee Removal, Videos

Where in the World do I file my Lawsuit?

Where do you sue your Trustee?  If you want to sue a Trustee in California, there are two issues you need to consider: (1) jurisdiction, and (2) venue. Jurisdiction is the big question—can this Trustee be sued in California? Venue is the smaller question—where in California must this Trustee be sued?

Jurisdiction — The Big Question

Under Probate Code section 17300, any person who accepts trusteeship of a Trust having its principal place of administration in California submits personally to the jurisdiction of the California courts. In other words, if you choose to become Trustee of a Trust that is being administered in California at the time you take over, then you agree to come to court in California if there is ever a problem in the future.

That is a pretty broad standard. But it gets broader still under Probate Code section 17004, which allows the court to exercise jurisdiction under any basis that can be used for civil lawsuits under Code of Civil Procedure section 410.10. Section 410.10 is California’s so-called Long Arm Statute that allows jurisdiction where people have sufficient minimum contacts with this state. This includes concepts like “in-rem” jurisdiction that allows California to hear cases involving California real property in this state. In short, if you are Trustee of a California Trust or a Trust that has California real property, pack your toothbrush because you’re coming to California if you are ever sued.

Venue — The Small Question

Once jurisdiction is established, you then have to consider where to sue—that’s a matter of venue. Under Probate Code section 17005, the proper county in which to sue a Trustee is where the place of Trust administration is located. The place of administration is where the Trustee resides or where they do business. If you have more than one Trustee, then it is where either of the two Trustees reside or do business. If there is no Trustee, then venue is proper where any assets of the Trust are located. This standard is different from probate estates—where the proper venue is where the decedent resided at the time of death. For Trusts, you go where the Trustee is in order to file suit. If the Trustee is out of state, then follow the Trust assets for filing suit.

We seem to be seeing more instances of people moving out of state after accepting to act as Trustee of a California Trust. Now you know that just because the Trustee is no longer in California, California courts may still be the correct jurisdiction and venue in which to file a lawsuit.

How To Handle Bad Trustees: Obtaining Trust Documents

Posted in Trustee Breach of Trust, Trustees & Beneficiaries, Videos


You will never know for certain what your rights are under a California Trust or a California estate without first seeing the Trust or Will documents.  But how do you obtain those documents when a Trustee refuses to provide them to you?  In this video, partner Stewart Albertson describes the process of obtaining Trust and Will documents.

Attorney Felix Martin Joins the Fight for Abused Beneficiaries

Posted in Litigation

One of the joys of building a successful firm is being able to attract talented lawyers who share in our vision of helping people fight hard to protect their rights when abused.  This month, we had the pleasure of welcoming attorney Felix Martin to our team (see press release here).

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Felix is a twenty-year veteran lawyer (with a CPA background), and he has the scars to prove it.  Felix started his career as a deputy District Attorney and then transitioned into civil litigation.  He focuses his practice on Trust and Will litigation, and does some estate planning and trust administration.  Felix has successfully tried cases in front of juries, judges, arbitrators–pretty much anybody who will listen.  And his CPA background gives him a distinct advantage in cases involving Trust accountings and misappropriation of assets.

Personally, I like having Felix on board because he is smart, highly professional, easy to talk with, and has a great feel for the right direction of a case (a good gut, you might say).  And those are skills one can never master from book-learing alone.  These days information is cheap.  You can find any information you want on the internet, but having the experience to use that information to achieve a great result in a tough case?  That takes something far more rare–experience.  More accurately, successful experience.  And that is where Felix really shines.

Welcome aboard Felix!

Must a California Trustee Report Financial Elder Abuse?

Posted in Abuse & Fraud, Elder Abuse, Videos

Must a Trustee Report Elder Abuse?


There are certain categories of people who are required by law to report any suspected elder abuse. That includes both physical elder abuse, and financial elder abuse. Under California Welfare and Institutions Code section 15630, any private or public facility that takes on the care and custody (meaning housing) of an elder (elder is defined as anyone aged 65 or older) is a “mandatory reporter”—meaning they must report any suspected physical or financial elder abuse.

Additionally, any financial institution such as a bank or credit union is a mandatory reporter for suspected financial elder abuse. While not every financial institution is good at exercising this requirement, many have become far more sophisticated in spotting and reporting suspected financial elder abuse.

Trustees of private Trusts on the other hand are not mandatory reporters. And since most Trusts created by people during life are private Trust (meaning revocable, living Trusts), most Trustee are not under a legal duty to report any type of physical or financial elder abuse.

But even if a legal duty does not attach to a Trustee, there is a strong argument that a Trustee is under a moral obligation to report elder abuse. And nearly anyone can make a complaint to the Adult Protective Services in the county where the elder is located when suspected elder abuse is present.  The Trustee also may have the right to bring a civil Financial Elder Abuse claim under the Welfare and Institutions Code, which can include a restraining order to protect the interests (and physical well-being) of the elder.

Often financial elder abuse is present when you least suspect it.  Most abusers don’t broadcast their wrongs.  Thus, any suspected elder abuse should be reported and acted upon as quickly as possible.

How to Handle Bad Trustees–Tangible Personal Property

Posted in Litigation, Trustee Breach of Trust, Uncategorized, Videos

Where's My Share of Mom's Stuff???

Fairly often California Trust and Will lawsuits come down to the tangible personal property–things like photos, family heirlooms, and antiques.  But once one party takes off with these items how do you get them back?  Or how do you force the Trustee to give you the personal items you deserve?  In this video, partner Keith Davidson describes the process of forcing distribution of tangible personal property.

Now You See It, Now You Don’t: Can assets be transferred to a new Trustee without telling the old Trustee?

Posted in Trustee Removal, Trustees & Beneficiaries, Videos

Does the Trustee Have to Know???


Can a new Trust be created and assets transferred without telling the Trustee?

Once a Trust has assets titled in the name of the Trustee, that named Trustee becomes the legal owner of the assets. The beneficial owner of the assets is whoever is named as beneficiary. In the case of revocable trust (also called living trusts), the Settlors are also the beneficiaries. Settlors are often the Trustees too, but there are instances when a different person or Trust company is named as Trustee.

Since the Trustee is the legal owner of Trust assets, the Trustee technically is the one who has to transfer assets out of the Trust. But what should happen, and what does happen, can be two different things.

We have often seen assets taken out of a Trust by the Trust Settlors without telling a Trustee. Those assets are then transferred to a new Trust naming a new Trustee. This can occur because (1) the Trust allows the Settlor to do so, (2) the assets are not held in the Trust to begin with, or (3) the financial institution simply allows the Settlor to make the transfer.

Technically speaking, most Trusts require that a Trust revocation be served on a Trustee. And removing assets from a Trust is the equivalent to revoking the Trusts as to those assets. As for a distribution of assets from the Trust, that is usually done by the actions of the Trustee.

So is there anything wrong with a Settlor taking assets out of a revocable Trust? Generally, no there is not. Most Settlors retain the right to revoke the Trust. Taking assets out of the Trust, even if not done with technical correctness, is “no harm, no foul.”

That does not apply, however, if only one Settlor takes assets belonging to both Settlors (such as community property). That can be a problem. Or where a Settlor takes assets from a part of a revocable Trust that has become irrevocable due to the death of one spouse. That is also a problem. But absent a special problem, the act of taking assets out of a revocable Trust is perfectly acceptable.

Do California Estate Plans Really Protect You When You need Them To?

Posted in Litigation, Planning, Videos

Do Estate Plans Really Protect You From


Do estate plans really protect you when you need them to? Yes and no.

In a perfect world, an estate plan is all you need to provide for your care and well-being when you lose the capacity or ability to care for your own finances. And for some people, this works great because they have loving (and non-manipulative) family members who all get along and agree on the correct course to take.

And then there’s the other side of the coin, where an estate plan does not work so well because family members do not agree. Or worse, a family member is manipulative or making decisions and changing documents to protect his or her own financial interests rather than caring for the elder’s well-being.

While things like revocable Trusts, durable powers of attorneys, and health care directives work great when all is well, they are not as useful when someone is taking advantage of an elder. In fact, an abuser often will have new documents signed that give them the power to control the health or finances of an elder.

When confronted with disaster, the only way to protect an elder is to file for conservatorship.  A conservator is a court appointed person who steps into the elder’s shoes and becomes the only person with the legal authority to make health and finance decisions on behalf of an elder.

But wait, isn’t an estate plan created to avoid conservatorships? Yes, but when someone is being manipulative or abusive, the court process is the only way to protect an elder. Once a conservator is appointed, he or she can take steps to protect the elder, provide proper medical and health services, and look over the finances. Also, in the context of a conservatorship action, the Court can invalidate any health care directives or durable powers of attorney that harm the elder.

Is estate planning still worthwhile? Yes, absolutely because without a plan you will most definitely end up in court. And a majority of estate plans work well to avoid court intervention. But when estate plans go awry, the court system is the only answer to protect an elder from abuse.